Le Velle v. Penske Logistics

197 F. App'x 729
CourtCourt of Appeals for the Tenth Circuit
DecidedAugust 11, 2006
Docket05-1216
StatusUnpublished
Cited by1 cases

This text of 197 F. App'x 729 (Le Velle v. Penske Logistics) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Le Velle v. Penske Logistics, 197 F. App'x 729 (10th Cir. 2006).

Opinion

*731 ORDER AND JUDGMENT *

MICHAEL R. MURPHY, Circuit Judge.

I. Introduction

Ray LeVelle sued his former employer, Penske Logistics (“Penske”), in the United States District Court for the District of Colorado. Among other claims, LeVelle alleged Penske violated the Americans with Disabilities Act (“ADA”) when it terminated his employment after learning he was working subject to doctor-recommended lifting restrictions. The ADA claim proceeded to a jury trial. LeVelle prevailed, and the jury awarded him compensatory damages, back-pay, and punitive damages. The district court awarded LeVelle attorneys’ fees and costs. Penske appeals from both the judgment and the court’s award of attorneys’ fees. This court exercises jurisdiction pursuant to 28 U.S.C. § 1291. We affirm in part, vacate in part, and remand for further proceedings not inconsistent with this opinion.

II. Background

“When reviewing a jury verdict, we review the record in favor of the prevailing party, and give that party the benefit of all reasonable inferences to be drawn from the evidence.” Miller v. Eby Realty Group LLC, 396 F.3d 1105, 1108 (10th Cir.2005) (quotation omitted). Viewed in this light, the record reveals the following. From 1996 to March 1999, and again from November 1999 to February 2001, LeVelle worked for Penske delivering and installing household appliances such as refrigerators, washers, dryers, dishwashers, ranges, and cook tops. LeVelle started out at Penske as a driver’s helper. Helpers were responsible for the “grunt work” of preparing appliances for installation and moving appliances from a delivery truck into customers' homes using a dolly. Later, LeVelle became a driver. Drivers assessed delivery logistics, assisted the helper in moving appliances, disconnected old appliances, connected new appliances, dealt with paperwork, and interacted with customers.

In March 2000, LeVelle slipped while delivering an appliance and injured his back. After the injury, he filed a report at work and sought medical treatment at the health-care provider Penske used in cases of employee injuries. LeVelle’s physicians told him he could not return to work. As a consequence, LeVelle did not work from March 16, 2000 until October 9, 2000. During this time, LeVelle underwent physical therapy and received workers’ compensation benefits.

In September 2000, Dr. Robert Kawasaki gave LeVelle an impairment assessment and functional capacity evaluation. Dr. Kawasaki determined LeVelle had reached maximum medical improvement, but noted LeVelle had “some significant limitations regarding his work capabilities.” Dr. Kawasaki recommended the following work restrictions:

1. For all lifting below the shoulder level, I recommend a light duty category with 40 pounds maximum occasionally, 20 pounds frequently, and 10 pounds constantly.
2. For lifting overhead I recommend 20 pounds maximum occasionally, 10 pounds frequently, and 5 pounds constantly.
3. For push and pull, I recommend 80 pounds maximum occasionally, 40 *732 pounds frequently, and 20 pounds constantly.
4. The patient will need to alternate activities between sitting, standing, and walking as needed for comfort.

App. at 693. Dr. Kawasaki also determined LeVelle had an impairment of eleven percent of the whole person. 1

In October 2000, LeVelle gave his medical reports, including the recommended work restrictions, to Brett Carl, Penske’s logistics center manager at the time. LeVelle testified he and Carl discussed the doctor-recommended work restrictions, and LeVelle assured Carl he would be able to perform his job as a driver. At the conclusion of the conversation, Carl told LeVelle he could return to work at Penske. At first, Penske teamed LeVelle with an experienced driver who evaluated LeVelle’s ability to perform the job. After a week or so, Penske gave LeVelle his own truck and a helper, and he returned to his former position as a driver. LeVelle worked as a driver for Penske for the next several months without any problems, working approximately the same hours and making approximately the same number of deliveries as other Penske drivers.

In December 2000, Penske asked LeVelle to install a set of appliances that had already been delivered to a customer’s house. After arriving at the job site, LeVelle and his helper discovered one of these appliances was a KSS refrigerator, a large and heavy style of refrigerator. Installation of a KSS refrigerator required a special type of dolly and at least one extra person. Because LeVelle did not have the special dolly or the extra help, he did not install the refrigerator.

LeVelle’s failure to install the KSS refrigerator was, in part, the subject of a meeting between LeVelle and his supervisors in late January 2001. At the meeting, LeVelle explained to his supervisors he could not install the appliance because he did not have the correct dolly or the required number of people. LeVelle also told his supervisors he was still working subject to doctor-recommended weight restrictions, and expressed to them his concern that installing a KSS refrigerator without the special dolly and extra help might adversely affect his back. LeVelle’s supervisors ended the meeting, and LeVelle resumed his normal duties as a driver.

By the time of the meeting, Carolyn Jo Ward had replaced Brett Carl as Penske’s logistics center manager. Ward testified that, until the meeting, she was not aware LeVelle was working subject to medical restrictions. She told the jury that after the meeting with LeVelle, she looked through her files and asked other Penske departments for information on LeVelle’s restrictions. Approximately one week after the meeting, Ward obtained workers’ compensation and medical records concerning LeVelle’s back injury and restrictions. Ward reviewed LeVelle’s records and discussed his situation with Penske’s risk management department. Ward told the jury she was concerned that if a driver who had already suffered an on-the-job injury returned to work, he could re-injure himself.

On February 14, 2001, Ward called LeVelle into her office and told him he could not work as a driver in light of the medical restrictions placed on him by his doctors. *733 Ward assured LeVelle she would put him back on workers’ compensation, even though LeVelle told Ward he was no longer eligible to receive workers’ compensation benefits. LeVelle testified he asked Ward whether he could work at Penske in some other capacity. According to LeVelle, Ward said she would talk to someone and let him know.

At trial, Ward testified she did not consider employing LeVelle in any capacity other than as a driver and did not consider any alternative to terminating LeVelle’s employment with Penske.

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197 F. App'x 729, Counsel Stack Legal Research, https://law.counselstack.com/opinion/le-velle-v-penske-logistics-ca10-2006.